I have some personal sympathy for WhaleOil, he’s a fellow blogger and despite his sometimes wild and blunt accusations, he is doing what he believes in. I disagree profoundly with his right-wing politics, but I hate to see someone prosecuted for their opinions.

Having said that, I’m not at all surprised that Cameron Slater was today found guilty on eight charges of breaching suppression orders. He knows he did it; we know he did it and now Judge David Harvey in the Auckland District Court has found the police case proven and fined Cameron just under $8000.

He might call it a slap on the wrist with a wet bus ticket, but it’s nonetheless a hefty whack of cash.

While the guilty verdict is not surprising, what might be more curious is the reasoning and the implications in Judge Harvey’s decision.

For now I want to draw your attention to this paragraph:

Conceptually a blog is no different from any other form of mass media communication especially since it involves the internet which anyone who has an internet connection is able to access. It fulfils the concept of publishing and publication. It makes information available to a wider audience. That is why people blog. Although a blog may be no more than a personal diary or may contain expressions of opinion it is no different from a private citizen who gives an account together with his or her opinion of a court case including the name of a person who is subject to an order under s. 140 and posts it into private letterboxes or pastes it up on a billboard for all to see. It is publication. It is made to a wide audience. It goes beyond a private conversation over the telephone or, a coffee table or at a dinner party. It is the mass media element that accompanies the internet that places the blog within the same conceptual framework as any other form of mass media publication. Even if the blog were to be accessible by means of subscription with a login and a password it could well in my view be subject to the same constraints.

The idea that a blog is ‘conceptually’ ‘no different’ from ‘any other form of mass media communication’ is interesting and probably true on some levels. But on other, fundamental levels, it is very much ‘old media’ thinking.

Blogs are definitely not the same conceptually as the mass media – at least that is the view of the digital utopians and spruikers. It is certainly a live debate and it’s not settled yet.

Blogs were established as an alternative and counter to what many saw as the conservatism and ideological straight jacket that envelops the mainstream news system; so one could argue that conceptually they are very different beasts.

Take this alternative conception as one example. It’s from New York professor of media Clay Shirky. He’s a spruiker and I don’t always agree with him, but this is a good statement of the differences in conceptualising of blogs and other user-generated media:

[The] ability to speak publicly and to pool our capabilities is so different from what we’re used to that we have to rethink the basic concept of meda: its not just something we consume, it’s something we use.. As a result, many of our previously stable concepts about media are now coming unglued.

I know Cameron Slater sees himself on the front lines of those ungluing these previously stable concepts, but I’m not sure he’s on the right track here.

The key element in today’s decision is that for all intents and purposes blogs and bloggers are subject to the same legal constraints as the MSM – at least when it comes to issues such as what’s in the Crimes Act. Name suppression is covered by s139 and s140 of the Act and in Cameron’s case have been held to be absolutely applicable.

I’m not sure any other decision was really possible in this case. If you want to act like the media and have your say then I suppose to some degree you have to play by the rules. The judgment probably puts a little more pressure on the government to respond to the Law Commission report on regulation of the Internet, but it is not IMHO really out of the park in terms of reasonableness (based on what the law actually is).

Judge Harvey obviously takes his role very seriously; he’s delivered a 70 page judgment that is going to take some careful analysis over the next few days and weeks.

It is probably too early to tell, but today’s judgment could perhaps have a chilling effect on whatever passes for freedom of expression in the blogosphere; or it could just add the the vast piles of paper and PDFs in circulation.

There’s a good summary of the judge’s comments in court today on Stuff.co.nz and a later story from the NZ Herald which suggests Slater may appeal on the advice of his lawyer.

This line from Judge Harvey is also significant, in relation to Slater’s claim that the server for his blog is in the USA:

publication of information takes place where the material is downloaded and comprehended

This seems straightforward and it is consistent with the landmark case in this area; the famous Joe Guttnick decision in the Victorian Supreme Court and on appeal to the Australian High Court. In fact, Judge Harvey referred directly to this judgment in his ruling. He went on to write:

The reality of the situation therefore is that Mr Slater’s blog is available free of charge to internet users in New Zealand who may and do access it from time to time and therefore publication takes place in New Zealand.

Fair cop, I’d say…unfortunately for Mr Slater. He may appeal, but that could be costly too.

Slater’s defence seemed to rely on semantics to some degree, but when it comes down to a legal argument based on dictionary definitions (no matter how varied), it’s not much of an argument. In this case a report or an account was held to be any form or narrative and commentary or opinion, not necessarily a direct report of events in court.

Without wishing to engage in a battle of the Dictionaries, the online version of the authoritative Oxford English Dictionary gives the noun account as its 16th meaning. A particular statement or narrative of an event or thing; a relation, report, or description and report.

The erudite Judge Harvey seems to have one the battle of the dictionaries, after all, it is his courtroom: No trumping the judge!

The Judge also made an interesting aside in relation to the Bill of Rights and limitations to the freedom of expression. It should come as no surprise that there are limits to freedom of expression and that not breaching suppression orders is one of them:

My conclusion is that the limitation is indeed justified. It is quite clear both from a reading of the Bill of Rights Act, the authorities that have been cited and indeed the underlying provisions of the International Convention on Civil and Political rights that the rights are not absolute and are subject to restrictions based on other rights which must be taken into account.

Yep, that’s what the legal system’s for. It’s a system and therefore it has checks and balances and always a loophole that allows the system to protect itself from unreasonable challenges based on vague documents and sentiments like a Bill of Rights.

Finally, what about the idea that Whaleoil is a crusader for the rights of victims? This notion is based on the premise that the suppression laws to which he objects are themselves misguided or wrong. According to this logic, Cameron Slater is a crusader using civil disobedience against an unjust law (see comment from Chris Gale below).

But, are the suppression laws actually unjust? Do they really ‘protect’ criminals? Well no, they don’t. Under s139 suppression is related to the protection of victims of sexual crimes, there are other provisions under s140 about hardship and justice.

The idea that the laws protect criminals only exists within the context of punishment as revenge and is a form of vigilantism that is misguided and ultimately dangerous. The ‘stupidity of the horde’ is one way of looking at it. It is populist and dangerous and ultimately a threat to democracy, not a path to righteous peoples’ power.

Whaleoil -aka the blogger Cameron Slater – must be feeling a little chuffed this morning, his ‘name and shame’ campaign got a morale boost from two columnists.

Kerre Woodham in the HoS and Rosemary McLeod in the SST are both on board with the Whale’s crusade to have a Manawatu man exposed as a serial downloader of child porn. The man has name suppression – to protect his wife, not him – but there’s been a teacup full of storm about lifting name suppression so that other men in the region aren’t under a cloud of suspicion.

My feeling is that anyone who needs to know who this guy is probably already does, so lifting name suppression is really only going to satisfy some public curiosity, not actually improve the standard of living in Manawatu. Read the rest of this entry »

The fiesty blogger Whaleoil has ramped up his campaign to reform New Zealand’s name suppression laws by launching a (so far) online crusade called SHAME.

It’s a shame to mix up Whale’s campaign for justice – ie. his legal defence – with this campaign to reform name suppression laws,which has a focus on sexual offending, rather than the broader debate about name suppression. There has to be more intellectual rigor around any campaign to change suppression laws, rather than the simplistic and moral-panic inducing call to expose alleged and/or convicted pederasts.

The Whale is also publishing “interesting names” on his Gotcha blog. They are mostly convicted and registered US sex offenders who have been arrested on serious charges in the last few days. The exception is Scott Ritter – former UN weapons inspector – who was recently arraigned on charges laid after a police online sting operation.

But for at least one of the Whale’s “interesting names” there’s more than one prominent individual at the top of the Google list. An indication of how releasing and publicising common names can also create accidental victims.

Whale is probably trying to make the point that NZ suppression laws prevent the establishment of a public sex offender registry like those operating in many American states and nationally, such as Family Watchdog. In Britain there is The RatBook, Unofficial and the no vigilante disclaimer seems a little hollow in tone and intent.

PHILADELPHIA – A longtime UN weapons inspector who blamed a 2001 sex-sting arrest on his criticism of the Iraq war has again been charged in an online child-sex case, and this time he was caught on camera. [NZ Herald 15/01/10]

He’s no doubt considered (by right-thinking individuals in the herd) to be darling of the “liberal intelligentsia”, so I would suppose that the dribblejaws would argue “Of course,” because of his supposed “hero” status among those of us who were against the Iraq war from the beginning. That’s the sort of fevered logic you might find in some sections of the blogosphere – out in the the opinionated ooze.

As in this example:

Now, it turns out, Ritter is in the news again, this time for being caught in a teen sex sting. That’s right, the pro-Iranian weapons inspector is also a pervert…

I have a feeling that Ritter’s days as the “sky is falling” king of the far left are over. . .or should be.

The victim’s message is heart-felt, no doubt, but what does it add to rhe debate, The perceptions – that there is no “justce”, that “bastards” deserve “it”, are populist myths that feed the whole vengance riff and notion that the “system” has failed victims of crime, that I mentioned last week.

I’m a bit under-capacitated at the moment, here’s today’s links with brief comments.

JamesMurray’s blog at TV3, sustains an argument that the method not the purpose is the problem with Whale’s crusade:

To some degree Whaleoil has a point – name suppression laws, which were last reviewed in 1985, are hideously out-of-date in a society where we can all become publishers of content at the push of a button.

And it seems distasteful, at the very least, that a well-known entertainer should receive permanent name suppression for a sexual assault where revealing his identity might harm his career in a disproportionate manner.

This is not a luxury that would be afforded to someone not in the public eye. It is a double standard that needs to be rectified. There may be an argument that we need to protect celebrities or other well known people from undue media scrutiny in cases like these, but that argument is squashed by the need for a justice system that treats each man as an equal.

The question is just how out-of-date are suppression rules? I don’t think we can assume they don’t apply to bloggers as well as MSM publishing ventures.

Second, the rules talk about hardship to victims of crime (including the perps) and the Law Commission’s recommendations include amending this to undue hardship”. One could argue that loss of income is hardship.

Third, why are we so caught up on revenge and the punishment of shame?

The Dom Post‘s editorial has a bit both ways:

Slater is on a mission. He has said, outside the courtroom, that he believes everyone should be equal before the law, that celebrities and the wealthy have their identities suppressed more often and more easily than do ordinary Kiwis, and that the law needs changing.

The Dominion Post agrees. But there are better ways to lobby for a more open court system than by putting at risk the future of a teenage girl.

At times of egregious breach, the solicitor-general has been keen to go after those in the mainstream media who have broken suppression orders or otherwise committed contempt of court.

Either everyone who breaches this law is prosecuted, or no-one is. And were the latter to become the reality, those sections of the Criminal Justice Act pertaining to suppression orders need to be repealed.

Why are they picking on Mr Oil? Well, whereas the media pay lip service to the suppression orders and laws, Mr Oil rather thumbs his nose at them. Also, I’m guessing the police may well be using Mr Oil as a test case to send a message to others. I don’t like that practice much, but again, they’re within their rights, and it’s no defence for Mr Oil to complain that he’s been singled out. The Solicitor-General has done that with contempt prosecutions fairly regularly…

For those who think it’s discriminatory to give suppression orders to celebrities but not oiks like us, consider this: if you got prosecuted for weeing behind a pub, the media wouldn’t be interested. If it was an All Black, it would be front-page news. Those are the effects of a judge opting not to impose a name suppression order. Isn’t there a decent argument that that would be discriminatory too, and that name suppression merely irons out the discrepancy? (Not saying I buy that entirely, just that the issue’s a bit more complicated than some people suggest.)

When the Police charged me to “set an exam­ple” they picked the wrong per­son. If they wanted a sac­ri­fi­cial lamb they should have picked a lefty, they would have lain down and said fuck me in the arse because I like it and I’ll say sorry after­wards and pay a fine, I should have been more sub­servient, and doff their caps to the estab­lish­ment as they left court. But then lefty weak­lings never test the edge unless it is in favour of peo­ple like Pol Pot or Hamas.

A pithy and pungent attack on Whale’s political foes and those who question his purpose.

Mr Slater isn’t prepared to allow the process of legislative reform take its course. You see, he already knows what needs done, and knows that he is just the person to bring about these needed changes. So he’s started “outing” the names of individuals where these have been suppressed by the courts, on the basis that people want to know them and so he’ll tell them. And anyway, why should criminal scum get to hide from the righteous wrath of the mobilised mob?

Cameron will find out in due course, whether or not that is seen to identify the ex-MP with name supression, but if they do prosecute the Whale, the question has to be asked whether newspapers should be charged also?

The man’s name was suppressed when he appeared in the Nelson District Court on Thursday.

A Sunday newspaper published details about the man, which Slater said had narrowed the field of possible accused to three.

He wanted to clarify who the accused was so the other two men were not unfairly accused.

Now I am not gunning for the Herald on Sunday. But I would say that far more people worked out from their story, who the accussed is, than the handful of people who were capable of working out the code Cameron had used, and reverse engineering it into hexadecimal and finally the alphabet.

I don’t believe that Cameron Slater is giving power to the victims in these cases, nor do I believe that is his intention, although it might be a justification he is using now. I think he is trying to build power for himself. And that’s a cynical abuse of very real situtations for actual real people.

Prick seems to think he could put this child’s identity into the public arena with his stupid coded message and get away with it. (Don’t fool yourselves, pathetic righties. The identity of the alleged assailant will have identified the victim to those who know them). He actually said the Police should have better things to do than nab him for his blatant, unrepentant crime. He thinks he has the right to add to the suffering of sex victims to get himself some more airtime. (Congrats, btw, to news outlets that are refusing to name his blog and its URL).

We think that Whale is bloody brave, but in this incident the victim could be a family member and if that is the case we can see some justification for suppression.

However, we have also read the post of Lisa Lewis today, who writes about being abused at a young age and wished that at the time the name of the perpetrator was made public.

Its clear to see that this debate will continue for some time and its a hot issue – Gotcha – Whales website has crashed and our site is getting many hits searching for anything we have published on the MP who is alleged to have been charged with sex offences.

If every blogger in New Zealand posted the man’s identity in the headline of a post, and nothing else on the post. Would that breach suppression? Would the Police charge every blogger who posted his name in the headline and nothing else in the post?

Because if even 20 blogs did it that is an awful lot of police work required.

Where is the link?

That link would be formed by the MSM who post their own stories such as this one.

In isolation Whaleoil’s post meant absolutely nothing. Others have simply decoded it and then wrote their own stories in relation to linking it back to the details released at the weekend. Some haven’t even bothered to decode it at all and have just jumped up and down saying Whaleoil has breached the suppression order.